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Showing papers in "Law, Culture and the Humanities in 2017"


Journal ArticleDOI
TL;DR: This paper explored hunger striking and lip-sewing practices of migrants and refugees as a largely neglected form of protest that takes a silent exception from the exception, focusing on their gesture of a double withdrawal from nutrition and from speech.
Abstract: Border zones and detention centers are often characterized as spaces that concretize a permanent “state of exception” where resistance is deemed unlikely This article explores hunger striking and lip-sewing practices of migrants and refugees as a largely neglected form of protest that takes a silent exception from the exception Focusing on their gesture of a double withdrawal – from nutrition and from speech –, I make the case for an expanded conception of agency that is non-instrumental and expressive Pursuing an alethurgic analysis, I situate the violent and embodied silence of these protests in Foucault’s problematic of parrhesiastic practice I examine these practices as processes of subjectivation that unmake and remake the self, call into being parrhesiastic counter-publics, and courageously critique the present

14 citations


Journal ArticleDOI
TL;DR: The authors argue for an orientation toward justice that grounds itself on its condition of failure, drawing on Beauvoir's existentialist ethics and queer theory's embrace of failure as a resource for critical analysis and liberation.
Abstract: In this reflection, I take up the contradiction of calling for justice to be delivered from the same institutions that, under contemporary conditions of settler-colonial and white supremacist hetero-patriarchy, are often themselves the sources of injustice. I argue for an orientation toward justice that grounds itself on its condition of failure, drawing on Beauvoir’s existentialist ethics and queer theory’s embrace of failure as a resource for critical analysis and liberation. From an abolitionist perspective, I thus call for thinking about justice as failure in order to better hear the voices and respond to the demands of those most marginalized by carceral logics and practices.

8 citations


Journal ArticleDOI
TL;DR: In this paper, it is argued that this disruption frame is problematic because it reveals a surprising presentism lacking both a sense of the past and a coherent vision of the future, which produces an essential contradiction.
Abstract: This Commentary disrupts technology disrupting law. It suggests that “disruption” is increasingly becoming a framework when lawyers write about technology. It is argued that this disruption frame is problematic. It is problematic because it reveals a surprising presentism lacking both a sense of the past and a coherent vision of the future. Further, this presentism produces an essential contradiction. There is a vision of hyper-change; a tsunami of disruption needing law; nevertheless the forms of modern law seemingly endure. This opens to what is fundamentally worrying about the disruption frame. In its affirmation of modern law as able to manage disruption, the disruption frame obscures the significant transformation of law occurring in the digital. Technology is disrupting law in much more significant ways than is being considered by the disruption frame.

7 citations


Journal ArticleDOI
TL;DR: In 2015 and 2016, with the opening of the “Balkan refugee route,” Europe faced the greatest refugee crisis since World War II as discussed by the authors, considering the fact that masses of refugees crossed the borders of EU countries.
Abstract: In 2015 and 2016, with the opening of the “Balkan refugee route,” Europe faced the greatest refugee crisis since World War II. Considering the fact that masses of refugees crossed the borders of EU...

6 citations


Journal ArticleDOI
TL;DR: In this paper, the authors introduce the meaning of human dignity not only as a philosophical and legal concept, but also as the common ground of democratic political culture as well, focusing on the Slovenian case as an example of post-communist society, and explain the relevance of relationship between cultural orientations and institutional settings for democratic performance.
Abstract: The presence of the concept of human dignity has been increasing worldwide and it seems to be a fundamental concept in the democratic societies. The article introduces the meaning of human dignity not only as a philosophical and legal concept but as the common ground of democratic political culture as well. By explaining Kant’s theory and emphasizing the existence of the two dimensions of human dignity, it reveals a great significance of human dignity. Focusing on the Slovenian case as an example of post-communist society, the article explains the relevance of relationship between cultural orientations and institutional settings for democratic performance.

5 citations


Journal ArticleDOI
TL;DR: A historical inquiry into the sedition trial in 1908 of Bal Gangadhar Tilak, one of the most important anticolonial leaders in twentieth-century India, is presented in this article.
Abstract: This article is a historical inquiry into the sedition trial in 1908 of Bal Gangadhar Tilak, one of the most important anticolonial leaders in twentieth-century India. It argues that Tilak, in the ...

5 citations


Journal ArticleDOI
TL;DR: In this article, the role of lay decision-makers in American prosecutors' case preparation is examined, focusing on the creative and collaborative process by which pros in the criminal justice system make decisions.
Abstract: This article examines the role of lay decision-makers in American prosecutors’ case preparation. Drawing on ethnographic research, it focuses on the creative and collaborative process by which pros...

5 citations


Journal ArticleDOI
TL;DR: Populations marked for disposability who are deemed to have no place in the modern, including the Indigenous everywhere and all who stand in the way of the progress of capital accumulation, are alw...
Abstract: Populations marked for disposability who are deemed to have no place in the modern, including the Indigenous everywhere and all who stand in the way of the progress of capital accumulation, are alw...

5 citations


Journal ArticleDOI
TL;DR: In this paper, the authors read jurisdiction as a technique of legal fiction-making and as capable of exposing an originary ontological category of "being-with" in the common law.
Abstract: Through the work of Jean-Luc Nancy, and following recent publications that champion the theoretical significance of jurisdiction, this article reads jurisdiction as a technique of legal fiction-making and as capable of exposing an originary ontological category of “being-with.” Rather than thought of purely as an expression of the law’s sovereign authority, it is argued that jurisdiction is a privileged point at which we can see the law’s fragility and thus open to critical intervention and interruption. Following Nancy’s understanding of “writing” and “literature” as that which exposes being-with, I suggest that we might name such strategies of creative intervention “juriswriting.” This account of jurisdiction, developed by thinking with Nancy’s account of ontology, is explored with reference to the common law constructions of jurisdiction in the sixteenth and seventeenth centuries.

5 citations


Journal ArticleDOI
TL;DR: The rule of law is understood as a clear benchmark or achievement in contemporary international politics as discussed by the authors. But the Rule of Law is better understood as an invariably messy, contingent, and incomplete process.
Abstract: The rule of law is understood as a clear benchmark or achievement in contemporary international politics. But the rule of law is better understood as an invariably messy, contingent, and incomplete...

4 citations


Journal ArticleDOI
TL;DR: The King's Two Bodies is a genealogy of modern state power as discussed by the authors, and Kantorowicz mournfully shows how the death and tragic afterlife of a particular medieval concept of sovereignty helped to make possible the horrors of modern political absolutism and state idolatry.
Abstract: The King’s Two Bodies is, as has long been recognized, a genealogy of modern state power. But it is also something else less clearly recognized. The King’s Two Bodies is a lamentation. In Kantorowicz’s poignant eulogy, the sovereign that medieval lawyers had made in the imago dei, was revealed at last to be an idol. Profound reverence for the rule of law crumbled into absent-minded legality. The lawful sovereign became diabolical power, forever deciding exceptions but incapable of justice or grace. In The King’s Two Bodies, Kantorowicz mournfully shows how the death and tragic afterlife of a particular medieval concept of sovereignty helped to make possible the horrors of modern political absolutism and state idolatry.

Journal ArticleDOI
TL;DR: While life-without-parole (LWOP) sentencing looks like a tough-on-crime repudiation of rehabilitation, it has deep roots in the penal ideology of earlier periods as mentioned in this paper.
Abstract: While life-without-parole (LWOP) sentencing looks like a tough-on-crime repudiation of rehabilitation, it has deep roots in the penal ideology of earlier periods. The notion of incorrigibility on which LWOP rests was already implicit in the rehabilitationist project of the penitentiary movement. With attention to the indeterminate sentencing reforms of the Progressive era, the racialization of criminology, and the rhetoric surrounding LWOP since the 1970s, this article offers a genealogy of a seemingly novel punishment. Ultimately, we need to challenge LWOP not because it is exceptional, but rather because it is typical of both historical and contemporary state practices of banishment.

Journal ArticleDOI
TL;DR: In this paper, the authors make a theoretical argument for reimagining the rule of law in light of legal pluralism, building on the work of Desmond Manderson and Roderick Macdonald.
Abstract: This article makes a theoretical argument for reimagining “the rule of law” in light of “legal pluralism.” Building on the work of Desmond Manderson and Roderick Macdonald in particular, the articl...

Journal ArticleDOI
TL;DR: The authors examines the political and cultural dynamics surrounding postwar West Germany's passage of its 1960 hate speech law, which remained in effect for 50 years, and uses the case to question the need for hate speech laws in the first place.
Abstract: This article examines the political and cultural dynamics surrounding postwar West Germany’s passage of its 1960 hate speech law, which remained in effect for 50 years. It uses the case to question...

Journal ArticleDOI
TL;DR: The role of the Declaration of Independence in the struggle for racial justice in the United States is explored in this paper, where the authors suggest that the Declaration's principles have served as a wellspring for the development of racial justice.
Abstract: What role might the Declaration of Independence play in the struggle for racial justice in the United States? Dominant accounts suggest the Declaration’s principles have served as a wellspring for ...

Journal ArticleDOI
TL;DR: A growing number of commentators view discrimination against multiracial (racially-mixed) people as a distinctive challenge to racial equality as mentioned in this paper, based on the belief that multirac...
Abstract: A growing number of commentators view discrimination against multiracial (racially-mixed) people as a distinctive challenge to racial equality. This perspective is based on the belief that multirac...

Journal ArticleDOI
TL;DR: By treating spatial conflict as one way communities wrestle with the memory and legacy of slavery, the authors unifies critical landscape analysis, a tool of legal geography, with legal and cultura.
Abstract: By treating spatial conflict as one way communities wrestle with the memory and legacy of slavery, this article unites critical landscape analysis, a tool of legal geography, with legal and cultura...

Journal ArticleDOI
TL;DR: This article explored the dynamics of racial identity and racial contest and what they might presage for the possibility of achieving racial justice in America's white working class, and found that despite any difficulties in defining this group and what might be ascribed to them, there appears to be an intensification of white racial identity among a growing segment of America’s white population.
Abstract: In the run-up to and aftermath of the 2016 US presidential election, much has been made of the so-called “white working class.” Some credit or blame this group for the election’s outcome. Others warn against treating this group as monolithic. Yet despite any difficulties in defining this group and what might be ascribed to them, there appears to be an intensification of white racial identity among a growing segment of America’s white population. This article seeks to explore the dynamics of racial identity and racial contest and what they might presage for the possibility of achieving racial justice.

Journal ArticleDOI
TL;DR: The authors investigates the seriousness of different kinds of lies in political life in the light of Arendt and Derrida's reflections on lying and contemporary lies in politics and shows where concern should focus.
Abstract: In ‘‘History of the Lie: Prolegomena’’ (2002) Jacques Derrida examines Hannah Arendt’s analysis of the modern lie in politics in her essays ‘‘Lying in Politics’’ (1972) and ‘‘Truth and Politics’’ (1968/1993). Arendt contrasts the traditional lie, where lies were told and secrets kept for the greater good or to defeat the enemy, with the modern lie, which comprises deception and self-deception on a massive scale. This article investigates the seriousness of different kinds of lies in political life in the light of Arendt and Derrida’s reflections on lying and contemporary lies in politics and shows where concern should focus.

Journal ArticleDOI
TL;DR: This article examined the relationship between law and morality in a selection of animated Disney movies released between 1960 and 1998, and analyzed all of the fully-animated, G-rated movie.
Abstract: This article examines the relationship between law and morality in a selection of animated Disney movies released between 1960 and 1998. The authors analyze all of the fully-animated, G-rated movie...

Journal ArticleDOI
Luca Follis1
TL;DR: In this article, the authors explore the relationship between the disciplinary and law and argue that law also functions as a conduit for resistance and contestation pitting the epistemological premises of discipline against the functions of legal jurisprudence and the foundations of criminal law.
Abstract: This article engages Michel Foucault’s thesis that post-sovereign law would be increasingly colonized by the disciplinary norm. It explores, through an analysis of prisoner litigation surrounding Maryland’s Patuxent Institution and its defective delinquency statute, how disciplinary power is enabled, understood, and resisted through law. I argue that Article 31B (as the defective delinquency statute was known) set up a zone of expert prerogative and discretion actively maintained and legitimated through jurisprudence. Yet, paradoxically, law also functioned as a conduit for resistance and contestation pitting the epistemological premises of discipline against the functions of legal jurisprudence and the foundations of criminal law. I contend that this dual character of law’s engagement with discipline (i.e., at once open to expert “colonization” and site of structural incompatibility and resistance) illustrates the intractability of the relationship between the disciplinary and law. That is, law both constitutes disciplinary space (and within this normative envelope, discipline can be “unbound”) and remains in a state of tension with the forms of power that develop within it (which by their very premises seek to exceed the limits law would place upon them).

Journal ArticleDOI
TL;DR: In this paper, the grey zone of violent resistance is explored, and the morally ambiguous situations facing liberation activists that have generally fallen outside the grasp of transitional justice scholarshas.
Abstract: The article engages the grey zone of violent resistance – the morally ambiguous situations facing liberation activists that have generally fallen outside the grasp of transitional justice scholarsh...

Journal ArticleDOI
TL;DR: Bad collectivity refers to moments of collective identification with injury that briefly transcend a culture of individualism which identifies freedom in terms of legal rights, rather than association, and a splintered and increasingly privatized public sphere as discussed by the authors.
Abstract: This article argues for the value of “bad collectivity” to educate and encourage citizens estranged from democratic practices, traditions, and institutions, to participate in the process of democratic will-formation. Originating in Ben Lerner’s novel 10:04, bad collectivity refer to moments of collective identification with injury that briefly transcend a culture of individualism which identifies freedom in terms of legal rights, rather than association, and a splintered and increasingly privatized public sphere. Considering Black Lives Matter an example of bad collectivity, I show how the movement has made injury rather than a progressive historical narrative the normative basis of participation.

Journal ArticleDOI
TL;DR: This paper explored the relationship between mob violence, immigration control, and the early twentieth-century US deportation regime, arguing that modern border policing's ostensibly bloodless removal absorbed anti-immigrant mob violence within its carceral-eliminatory system.
Abstract: This article explores the relationship between mob violence, immigration control, and the early twentieth-century US deportation regime. Scholars examining the decline of lynch violence in the South typically see modern criminal justice as a new incarnation of white, heteropatriarchal violence. But they have left the deportation apparatus, a conjoined element of a US carceral assemblage, unexamined. This article argues that modern border policing’s ostensibly bloodless removal absorbed anti-immigrant mob violence within its carceral-eliminatory system. As with the diminution of the Southern, anti-black lynch mob, invocations of legality in deportation proved better suited to the biopolitics of liberal capitalist modernity. Nevertheless, the deportation regime, bolstered by an extensive federal infrastructure, still targeted migrants of color, took aim against political radicals, and policed heteropatriarchy in its production of settler-colonial citizenship via the spatial elimination of so-called undesira...

Journal ArticleDOI
J. Hardes1
TL;DR: The authors examines the operation of "enmity" in right-to-die legal appeals and why the law relies on articulations of enmity to rationalize its decisions.
Abstract: This article examines the operation of “enmity” in right to die legal appeals. The article asks: (1) why does the law rely on articulations of enmity to rationalize its decisions and (2) what might...

Journal ArticleDOI
TL;DR: In this article, the authors focus on the value calculus of drone usage and propose a value calculus for the U.S. citizens to feel implicated in the harm caused by the use of drones.
Abstract: U.S. citizens rarely feel implicated in the harm caused by the U.S.’s widespread use of drones, and both drones’ opponents and proponents focus on value calculus of their usage. Nasser Hussain’s “P...

Journal ArticleDOI
TL;DR: Persona 4 as discussed by the authors, a Japanese video game, is described as a complex retelling of the relationship of the subject to law, through both narrative and medium, explores tensions of the l...
Abstract: This article investigates Persona 4, a Japanese video game, as a complex retelling of the relationship of the subject to law. Through both narrative and medium, Persona 4 explores tensions of the l...

Journal ArticleDOI
TL;DR: The authors argued that prescriptive immigration scholarship has something to learn from the rise of Donald Trump, and argued that the Republican party's relatively close ideological engagement with the aspira....
Abstract: This commentary argues that prescriptive immigration scholarship has something to learn from the rise of Donald Trump. The Republican party’s relatively close ideological engagement with the aspira...

Journal ArticleDOI
Peg Birmingham1
TL;DR: The authors argue that Lefort's reading of Machiavelli, embracing as it does the central role of a shared cunning or ruse between the people and the prince, offers valuable resources for thinking the foundation of political authority for a secular democratic politics.
Abstract: The institution of Hobbes’ Leviathan is marked by the transformation of cunning, equally shared by all in the state of nature, into a rational, sovereign politics. The question I take up here by way of Machiavelli and two of his contemporary readers, Derrida and Lefort, what if cunning was politicized rather than replaced by sovereign reason? In other words, what if cunning, a complex political deception, was not abandoned or given over to the sovereign? I argue that Lefort’s reading of Machiavelli, embracing as it does the central role of a shared cunning or ruse between the people and the prince, offers valuable resources for thinking the foundation of political authority for a secular democratic politics, while in contrast, Derrida’s critique of Machiavelli’s cunning illuminates why he is not able to escape a sovereign, theological foundation for political authority and the law.

Journal ArticleDOI
TL;DR: This article revisited the work of Fanon so as to illuminate the significance of his understanding of colonized/racialized identities as "damned" for contemporary juridical scholarship, and developed understandings of post-colonial/decolonial international law, international law and political/juridical the...
Abstract: Recent critical legal scholarship has shown the significance of colonialism for emergence of modern international law.1 Paralleling, sometimes interweaving, with this post-colonial/decolonial reading has been a “religious turn” in which scholars highlight the persistence of the theological-political within the ostensible secularity of law.2 Frantz Fanon has much to offer both lines of scholarship. This article revisits the work of Fanon so as to illuminate the significance of his understanding of colonized/racialized identities as “damned” for contemporary juridical scholarship. Fanon’s Les Damnes de la Terre, when read alongside the canonical literary account of the “fall,” John Milton’s Paradise Lost, offers an account of the juridico-theological process constructing an ideal of “humanity” through turning particular subjects into deific surrogates and others into the “damned.” This article develops understandings of postcolonial/decolonial international law, international law and political/juridical the...